LEGAL NEWSLETTER OF UNION SYNDICALE – BRUXELLES
This is a new legal service to you: Staff Matters. Union Syndicale will keep you regularly informed about latest developments in EU case law on staff matters and other useful legal news relevant for staff.
It will treat subjects like e.g. your rights in promotion, invalidity, entitlements and benefits, pension, the duty of care, holidays, insurance, damage claims, filing complaints and procedural questions as well as deadline observance.
This is to increase your knowledge and capacity to defend your rights appropriately.
This newsletter is about the important subject of invalidity, at the example of a recent judgment of the Court of Justice which confirms that the term invalidity in the context of the entitlement of staff to an invalidity allowance can only be interpreted as an incapacity to fulfil the duties within the own institution. If found invalid there, the staff member cannot be referred to the general labour market with the argument that he/she would be “not invalid” outside the institution. In other words, an invalidity allowance has to be granted independent of the capacity of the staff member to perform work on the general labour market.
In this newsletter we present a recent judgment of the General Court on the review of an appraisal report. An action against such report (once final) can be filed directly, without going through the complaint procedure and without being obliged to lodge an appeal. In the present case, the Court annulled the appraisal report, because
(a) it lacked the reasoning in respect to an assessment that lead to a lower than the required mark,
(b) it was vitiated by an error of fact, because an allegation in the appraisal could not be proven and
(c) the report did not take into account the health problems of the staff member.
We present in this newsletter a recent, important judgment of the Court of Justice (ECJ) on pension rights of contract staff and on effective judicial protection. The benefits of the transitional regime for staff other than officials who had already contracts before 2004 or 2014 also apply to the many colleagues who cannot show to have worked in “functional continuity” (due to various functions on the basis of various contracts), but who have nevertheless contributed continuously to the pension scheme, says the ECJ. In the specific case, the applicant asked about the implications of the 2014 reform on his pension rights. The ECJ decided that the administration’s reply on this was binding and thus challengeable at the court. The ECJ found that the applicant had continued to contribute to the pension scheme and hence is entitled to the benefits of the (more favorable) transitional scheme.
Impartiality – appeal against appraisal report – disciplinary proceedings – obligations of civil servants – invalidity committee
This newsletter is dedicated to the principle of impartiality, one of the central obligations of EU civil servants, and at the same time a right enjoyed by every civil servant. The institutions have to comply with both manifestations of the principle: subjective and objective impartiality.
In this newsletter we present a recent case in which the European Court of Justice (ECJ) ruled on the term “unauthorised absence” of an official
in the sense of Art. 60 SR. As the Court decided, “absence” means physical absence. The provisions for disciplinary measures shall not be bypassed by
applying the “unauthorised absence” concept in a too broad sense. Otherwise, a civil servant could be sanctioned for low performance or unwillingness
under Art. 60 SR (namely by deducting leave days and/or remuneration), without affording him or her the safeguards foreseen under disciplinary law.
Staff Matters #23
In this newsletter we report about a recent legal case in which the General Court annulled the Commission’s disciplinary sanction to terminate a contract without notice. As a matter of unity of the personal file, a disciplinary measure must not take into account those elements of the personal file that have been removed from it. In the case at hands, the Commission effectively reinstated an earlier disciplinary reprimand in its considerations, although the administration – upon request of the applicant – had already deleted this element from the file.
Staff Matters #22
In this newsletter we report about a case in which the Court annulled the Commission’s decision to terminate a contract of indefinite duration. The annual appraisal reports, upon which the Commission had also based its decision, did not contain a specific reference to an unjustified absence of the applicant. The Court was further of the opinion that the applicant was not given a chance to restore the relationship of trust with the service within the given, short period of time.
Note : This judgment was annulled by the Court of Justice. See supplement in Staff Matters n° 23.
Staff Matters #21
In this newsletter we report about a case decided by the General Court in which it annulled the decision not to promote an official. The promotion procedure was vitiated because it took into account also earlier reports relating to the probation period of the applicant, instead of being solely based on appraisal reports. “Other information” concerning the administrative and personal situation of the candidates for promotion may only be taken into account in exceptional circumstances. The Court determines these exceptional circumstances in an obiter dictum
Staff Matters #20
This newsletter treats a very recent interim measure handed down by the General Court in which it ordered that the EIT (in Budapest) has to allow the applicant to do telework from her place of origin in Germany, until the time of lifting of the restrictions linked to the health crisis imposed by the authorities in Germany and Hungary. Yet, she is obliged to visit her duty station ad hoc for reasons related to the interest of the service.
Staff Matters #19
This newsletter treats a case decided by the General Court relating to the recognition of the occupational nature of a disease. The medical opinion issued by the Medical Committee was judged irregular, because the Committee was not able to examine all the available documents. The Appointing Authority had forwarded only a pre-selection of files to the Committee and instructed to disregard certain documents.
Staff Matters #18
In this newsletter we report about a recent decision of the General Court on reimbursement of medical expenses. For the rental of a medical device, the appointing authority – in the absence of an explicit reimbursement ceiling in the applicable rules – chose to apply the same ceiling that is prescribed for the purchase of that device. The Court however disapproves this introduction of a ceiling because it is not written in the rules on the reimbursement of expenses.
Staff Matters #17
This newsletter is about a very recent decision of the Court of Justice confirming that equality between men and women must be taken into account as one factor when deciding about the extension of a posting in a managerial position. An intriguing feature in this case law is that equality has to be considered even where there is no choice between several candidates.
Staff Matters #16
This newsletter is about a recent decision of Court of Justice confirming and redefining the right of a candidate in an open competition to obtain a statement of reasons (i.e. a motivation) for the decision not to admit him to the list of successful candidates. Together with a rejection decision, the selection board has to provide reasons for its decision and has to indicate the selection criteria, even if the candidate had not requested communication of reasons or criteria.
Staff Matters #15
We report in this newsletter about a recent decision of the General Court confirming the staff’s right to strike. The Court ruled that during an action of strike the European Parliament (EP) had no legal basis to requisition interpreters and conference interpreters. The right to strike is a fundamental right of staff stipulated in Art. 28 of the EU Charter of Fundamental Rights.
Staff Matters #14
This newsletter deals with the entitlement of the surviving spouse of an official to receive a pension after the death of the official. Such a survivor’s pension was denied in a case recently decided upon by the European Court of Justice (ECJ). The ECJ confirms that the Commission was right in refusing a survivor’s pension to the husband of an official with whom he had not been married for the required time of one full year. A status as cohabitant (i.e. their status for the period before being married) does not fulfil the strict requirements of “marriage” in the sense of the Staff Regulations.
Staff Matters #13
This newsletter focuses on the calculation of transferred pension rights from the national pension scheme to the European Union pension scheme. The General Court had decided that the Commission was not allowed to always deduct from the updated capital actually transferred, an interest at 3.1%1 per year in respect of the period between the date on which the application for transfer was made and the date of the actual transfer.
Staff Matters #12
This newsletter deals with a recent decision of the General Court on the question whether the law allows a superior to be an impartial appeal body for review of the appraisal report of a staff member, in case the same superior had played an important role in setting up the respective appraisal report before, as a reporting officer.
Staff Matters #11
This newsletter deals with the Commission’s power of initiative in relation to the rights of civil servants and employees of central government administrations of Member States to be consulted and informed. Can the Commission be forced to submit a proposal for a decision of the Council that would implement an Agreement put forward by the Social Partners in accordance with Art. 155 TFEU?
Staff Matters #10
This newsletter treats a recent case on contract termination during sick leave. The General Court annulled the dismissal decision of the European Environment Agency and awarded certain allowances to the applicant as well as compensation of 6,000 Euro for non-material damage suffered.
Staff Matters #9
This newsletter is dedicated to the subject of discrimination based on language. It presents two recent judgments of the Grand Chamber of the European Court of Justice. Differences of treatment based on language are, in principle, not allowed in the procedures for selecting staff for the EU institutions.
Staff Matters #8
In this issue, we will be looking at actions brought following the reform of the Staff Regulations which entered into force in 2014. Travel expenses, travelling time, annual leave, career capping, salary adjustment, increase in retirement age… Five years after the reform entered into force, many actions have not yet been definitively settled.
Staff Matters #7
This newsletter on a decision of the General Court of 8 May 2019 treats a question with considerable practical significance for all staff approaching or having reached their retirement age. The Court decided that it is not allowed to place an official on leave in the interests of the service if the person has already reached his/her pensionable age.
Staff Matters #6
This issue of Staff Matters focuses on the diploma requirements for participating in EPSO competitions. Recognition of qualifications, notice of EPSO competition, diploma, open competition, full legal education, how to find your way around?
Staff Matters #5
This issue of Staff Matters #5 deals with a recent decision of the Court on pension rights, particularly on the question whether there is a continuity of service for the EU and – related to this – whether previous, more beneficial, provisions on pension apply, although the official during most of her career has not worked in the Commission, but within EU agencies with new temporary contracts.
Staff Matters #4
This issue of Staff Matters will focus on the invalidity allowance. The applicant in case RI / Council, having worked for several years as translator for the Council, suffered from health problems at her left hand. The procedure to acknowledge her illness as an occupational disease under Art. 73 Staff Regulations (SR) was successful, while the Council refused to acknowledge that her permanent
invalidity under Art. 78 SR also resulted from an occupational disease.
Staff Matters #3
In this issue of Staff Matters, we will examine some cases where taking a decision or communicating it took an excessive time and the damages awarded by the Court. It has handed down a number of decisions relating to disciplinary procedures in cases where the procedures were unjustified from the outset or had not been immediately terminated once it turned out that they were not justified.
Staff Matters #2
In this second issue of Staff Matters, we will focus on the assistance that is – or should be – given by institutions to victims of harassment. In Case T-275/17, Curto, a Member of Parliament (MEP) requested the employing authority to terminate her assistant’s (the applicant of the case) contract by stating that the assistant, without permission, had not come to work for one week. The assistant submitted a request for assistance by the EP (Art. 24 Staff Regulations) and reported that the MEP had insulted her with humiliating and scornful language, threats and insults.
Staff Matters #1
The first edition will focus on the right to be heard. The rights of the defence constitute a fundamental principle of EU law. The person concerne must be given the opportunity, before the drawing up of a decision adversely affecting him, to make his views effectively known as to the truth and relevance of the facts and circumstances on which that decision was based. The right to be heard implies that the person concerned must have the possibility of influencing the decision-making process at issue.
